Guidance: Re-use of factual content featuring illegal or anti-social behaviour
Editorial Guidelines issues
This guidance note relates to the following Editorial Guidelines:
- Fairness to Contributors and Consent
- Reporting Crime and Anti-Social Behaviour
- Re-use, Reversioning and Permanent Availability
Summary of key point
- Content depicting illegal or anti-social behaviour may have a clear public interest purpose on first transmission. However, that public interest may diminish with the passage of time, and any re- broadcast/publication after first transmission must be considered case by case
Guidance in full
This guidance note sets out some criteria for deciding whether content depicting illegal or anti- social behaviour should anonymise individuals or edit out sequences for repeats well after first transmission. It sets out the considerations when deciding whether behaviour is such that reusing its depiction is unduly intrusive. It applies not only to repeats on traditional channels, but also to other forms of re-use such as sales of content in full or in part.
The BBC makes observational documentary style programmes showing the work of law enforcement agencies and officials who implement court judgements. Such programmes are both popular, and part of the BBC’s function of scrutinising the actions of public officials and bodies. As such, they often show individuals committing crimes or behaving anti-socially, or reveal information which raises questions of legitimate expectations of privacy.
Normally the BBC obtains informed consent from individuals appearing in our factual content. People recorded committing or admitting to an offence or anti-social behaviour have a reduced legitimate expectation of privacy (which will normally be outweighed by the public interest in exposing such behavior on first transmission), so will not normally be asked for consent. Nor should we conceal their identity, unless it is editorially justified or legally necessary to do so.
Additionally, the public interest in the work of law enforcement or other public services, and broadcasters right to freedom of expression must be taken into account when determining whether a breach of privacy is warranted. There may be good reasons to depict, for example, the work of the police, but the strength of the argument for repeating material showing an individual being arrested or questioned will decline with time.
Repeats/re-use, particularly more than a year after the first broadcast, must be handled with care. Content depicting illegal or anti-social behaviour may have a clear public interest purpose on first transmission. However, that public interest may diminish with the passage of time, and any re- broadcast/publication after first transmission must be considered case by case. That may require discussion with production, a senior editorial figure in the TV and Media Operations team (if they are involved) and Editorial Policy.
Channel controllers/schedulers should always be aware that repeating certain types of content is not straightforward and can throw up problematic editorial issues. Such content includes that involving the police and emergency services, consumer content exposing questionable behaviour, investigations, content depicting the work of court enforcement officials such as bailiffs, and other content where the impact of the rebroadcast on a contributor will need consideration.
There are separate considerations if any content was secretly recorded.
Matters to be considered include:
- Circumstances of recording
Consideration must be given to the circumstances of the recording. Is the individual concerned in a sensitive situation, such as being arrested or undergoing medical treatment or in a place which is itself sensitive, such as a hospital, school, prison or police station? Did the recording take place in a private place, a semi-public place or in a public place?
- The individual concerned
Are they an adult, young person or child? If an adult, is the individual a vulnerable person and/or capable of giving informed consent?
- State of mind of individual concerned
Was the capacity of the individual concerned to notice or deal with the fact of being recorded impaired? Were they, for example, drunk, unconscious, under the influence of drugs, or in the immediate aftermath of a traumatic event, such as being mugged or involved in an accident?
- Nature of misbehaviour depicted
Just how anti-social or criminal is the behaviour depicted ? Would it attract a criminal charge? If so, was the individual concerned convicted?
- Nature of programme
Ofcom has made clear that the nature of the programme is a matter for the broadcaster. Material may be presented in a popular and engaging format, and any breach of privacy must be considered on its own merits, regardless of the nature of the programme.
Last updated July 2019